As current events in San Francisco remind us, confusion
over the meaning of marriage has given new energy to the idea of "freedom
to marry." The concept takes
several forms. As one Massachusetts
advocate of a pluralistic bent has phrased it, "the right to love and to
celebrate our relationships, in whatever form they take, is a fundamental human
right that should be protected." As a Coloradan of a more libertarian
persuasion puts it, "to be licensed by a bunch of bureaucrats for the most
private and sacred act of marriage--that's demeaning. It's simply none of the government's business whom I marry." Related takes on this concept include
"The Marriage Resolution" put forward by the group appropriately
called "Freedom to Marry" and now being put into effect in San
Because marriage is a basic human right
and an individual choice,
RESOLVED, the State should not interfere with
same-gender couples who choose to marry and share fully and equally in the
rights, responsibilities, and commitment of civil marriage.
At most, in this view, the government's role is
simply to register those couples freely entering civil marriage, so they might
qualify for the benefits and public blessing involved.
My argument today is that the appeal to freedom here
is false and misleading: Rather than an expression of true liberty, the phrase,
“Freedom to Marry” is "libertine" in effect, an invitation to social
disorder. The "freedom to
marry" idea presupposes that marriage is a private event, an arrangement by
and for the couple. It presumes that marriage
exists to recognize their love and promise of devotion to each other, to bless
their companionship, but no more. The
one promised public benefit, in this otherwise privatized and minimalist view
of marriage, is reduced promiscuity by the sexual pair.
And yet, the very nature of the average wedding
event belies such a narrow view of marriage.
The boisterous celebration mounted, the gathering of kith and kin, of
friends and neighbors, of former teachers and co-workers, and the feast spread
out traditionally by the bride's parents: these testify to more than an end to
promiscuity or public recognition of a love affair. The wedding is a communal event, where various levels of community
find their own renewal and hope. Focusing
only on the needs of the couple ignores the communitarian nature of true marriage
and the claims of these others on each marriage.
In the traditional Christian wedding service, there
was the time when the minister would pause and ask the congregation: "Does
anyone here know a reason why this man and this woman should not be joined
together? If so, speak now or forever
hold your peace." This has been
the moment which acknowledged the "community's" interest in the
wedding, where persons could assert themselves to prevent a marriage that threatened
broader relationships. It reminded the
marrying couple, as well, that their vows were not only between themselves, but
were also made with concentric rings of others holding as well a vested
interest in the making and preservation of this marriage.
What are these concentric rings of others…of community? And why do they also have a claim on each
true marriage? I want to explore five
today: (1) the community of potential parents with their unborn children; (2)
kin or extended family; (3) the neighborhood; (4) the community of faith; and
(5) the nation as community.
So first: THE COMMUNITY OF PARENTS AND THEIR UNBORN
Grievous challenges to the institution of marriage
are nothing new. The Soviet Bolsheviks
waged war on marriage and home for the first two decades of the Russian
Revolution, 1917-36. A century and a
quarter earlier, the Jacobins of The French Revolution also sought to tear down
marriage laws resting on traditional principles. The proposed French Civil Code of 1801, for example, promised
"freedom to marry" and easy divorce.
Ignoring both Christian thought and the evidence of all history, the radical
authors of this measure argued that "what marriage itself is was
previously unknown, and it is only in recent times that men have acquired
precise ideas on marriage."
Building on the thought of Jean-Jacques Rousseau, the architects of the
1801 Code urged that marriage be made "natural," by which they meant
animalistic, subject to the ebb and flow of the passions. Marriage, as such, should be easy to enter
and easy to leave.
Louis de Bonald, a statesman and a founder of modern
social science, rose in defense of traditional marriage. His extraordinary 1801 book, titled in
English translation On Divorce, remains a most valuable resource in helping sort
out issues regarding marriage. It
defends traditional marriage through an appeal to reason and the natural
Bonald's first task was to
clarify "that marriage, in itself and at bottom, has always been a civil,
religious, and physical act at once." He then set out to rescue the label,
"natural," from the disciples of Rousseau. Marriage was, in fact, both divine and human, he said:
…[I]t derives from the constitution of our being, of
our nature, and is a natural act: for the true nature of man and the real
constitution of his being consist in natural relationships with his being's
author [i.e., God], and in natural relationships, both moral and physical, with
Marriage attracted the attention of civil legislators,
in Bonald's view, because it was "the founding act of domestic society,
whose interests should be guaranteed by civil authority." But this domestic society did not really
rest on the needs or desires of the spouses: "the end of marriage is…not
the happiness of the spouses, if by happiness one understands an idyllic
pleasure of the heart and senses."
[T]he end of marriage is the reproduction
and, above all, the conservation of man, since this conservation cannot,
in general, take place outside of marriage, or without marriage.
By "conservation," Bonald meant the care,
rearing, education, and protection of children, which he believed could occur
successfully only in the married-couple home.
If pleasure or happiness was the goal of marriage,
then the civil authority had no business being involved. Instead:
[P]olitical power only intervenes in the
spouse's contract of union because it represents the unborn child, which is
the sole object of marriage, and because it accepts the commitment made by
the spouses in its presence and under its guarantee to bring that child into
In effect, a marriage "is truly a contract
between three persons, two of whom are present, one of whom (the [potential]
child) is absent, but is represented by public power, guarantor of the
commitment made by the two spouses to form a society."
This also explained why civil marriage was
restricted to heterosexual pairs: "Political power cannot guarantee the
stability of the domestic persons without knowing them; hence, the necessity of
the civil act, which makes known the commitment of the man and woman, and of
the birth certificate, which makes known the father, mother, and child." Bonald understood that public policy on
marriage must be built on this ideal family structure, and not on some
lowest common denominator “of the heart and the senses.”
Bonald also explained why the marriage of a man and
a woman who proved infertile, or unable to create a child, remained valid. Many of the French Revolution's philosophers
worried about the size of the French population, and called for easy divorce in
cases of fertility so that new pairings of men and women might be tried to
produce the needed children for war.
…whatever importance may be attached to population
by these great depopulators of the universe; they would doubtless not dare to
maintain that in human marriages one should, as on stud farms, proceed by
In short, government should not be in the business
of fertility tests. Rather, it should
understand the potential fertility of all male-female bonds (perhaps even modern
ones via the petri dish) and the powerful positive effects on children of the complementarity
of man and woman. The state then holds
together the potential or actual parents for the sake of good "conservation"
of the potential or actual child.
Community Circle: EXTENDED FAMILY, OR
Each marriage is also a covenant between the couple
and their kin. In marriage, two
families merge in a manner that perpetuates and invigorates both. It is true that issues of property are not
as prevalent in a wedding today as they were, say, 500 years ago. But the great chain of being, binding the
living to ancestors and to posterity, remains as important as ever. Every wedding of young people forges a new
link in that chain, for the family's future still rests in their potential
fertility. Even today, family members
will travel great distances to attend the wedding of a cousin, nephew, or niece,
still acknowledging the importance of both the promise and the event itself to
their own identity and continuity. As
President Theodore Roosevelt once wrote, a people existed only as its “sons and
daughters thought of life not as something concerned only with the selfish
evanescence of the individual, but as a link in the great chain of creation and
causation [forged by] the vital duties and the high happiness of family life.” Indeed: “the great chain of creation and
causation” over the generations appeared, link by link, through new marriage.
Marriage also serves as the natural solution to
human society’s dependency problem.
Just as marriage brings forth and cares for new life, it also creates
bonds and obligations that provide care for the very old, the weak, and the
infirm. In a society with a culture of true
marriage, these tasks fall on kin networks, where the aged or disabled can
receive care, purpose, and respect; and where kin insure that no family member
falls through the extended family’s safety net. It is again the chain of fertility—child, parent, grandparent,
blood kin—that brings to fruition these natural sentiments of intergenerational
care. Where a culture of marriage
fails, these tasks pass to the public purse, to government, at huge expense.
Indeed, a common goal of the contemporary women’s
movement and modern socialism has been to replace the bonds of marriage and kin
with a universal dependence on the welfare state. The feminist analyst Carol Pateman argues that women’s growing
dependence on the state is a logical corollary to feminist goals, and a
stimulus to state entitlements as a substitute for family-centered care. Frances Piven stresses the “large and
important relationship” of women to the welfare state as direct employees of
its program, noting that nearly three-quarters of government welfare jobs are
held by women. Put another way: less
true marriage means more government.
The Third Circle: THE COMMUNITY OF
Neighbors and friends also have a deep interest in
nurturing and preserving true marriage.
For some reason, this attribute of marriage seems best captured by
fiction and poetry. I still recall a
powerful telling of this truth by the National Public Radio humorist Garrison
Keillor. About twenty years ago, during
the first—and in my opinion the best—iteration of his show, “Prairie Home
Companion,” he told the story of receiving a letter from an old friend, now a professor
of sociology at a Midwestern college.
This friend was married and had several small children; but on the Spring
day recorded, he was sitting on the front porch of his home, going for the
weekend to a sociologists’ convention in a nearby city. Picking him up in her convertible would be
the newest member of the department, a beautiful young woman with a new
Ph.D. They had flirted with each other
over the prior few months and “the sweet prospects of adultery” that weekend
were on his mind. But as he sat,
waiting for her to arrive, he heard his wife’s voice, as she cared for the
baby, and saw his young son playing with the children next door. And he saw his neighbors at work in their
yards or playing catch with their own children. The web of relationships in his neighborhood broke into his mind
with a burning clarity. His quest for
pleasure, he recognized, would rip not only through his own marriage and home,
but through this neighborhood, shattering friendships, creating doubts and
fears in children, tearing apart the bonds of responsibility and care that surrounded
a people living in one place. His
faithlessness would affect not only his wife and children, but in a way all
wives and all children. Stung by
this revelation, he stood up, lifted his suitcase, walked inside, kissed his
startled wife, and unpacked his bag.
The Kentucky poet Wendell Berry, in his collection A
Timbered Choir: The Sabbath Poems, underscores how each couple on their
wedding day renew their place on earth, their community:
Again, hope dreams itself
year’s first lambs
Cry in the morning dark.
And, after all, we have
A garden in our minds.
We living know the worth
Of all the dead have done
Or hoped to do.
That hearts, against their doom
Must plight an ancient troth.
Now come the bride and groom,
Now come the man and woman
Who must begin again
The work divine and human
By which we live on earth.
Berry explains that the bride and groom “say their
vows to the community as much as to one another, and the community gathers
around them to hear and to wish them well, on their behalf and on its own.” In his wonderful short story, “A Jonquil for
Mary Penn,” Berry uses a rural Kentucky setting to explain how a young marriage
merges into a neighborhood:
“[O]n rises of ground or tucked into folds were the
grey, paintless buildings of the farmsteads, connected to one another by lanes
and paths. Now [Mary Penn] thought of
herself as belonging there, not just because of her marriage to Elton but also
because of the economy that the two of them had made around themselves and
their neighbors. She had learned to
think of herself as living and working at the center of a wonderful
provisioning:…the little commerce of giving and taking that spoked along paths connecting
her household to the others.”
And in a poem addressed to
his wife, Tanya, on their 31st anniversary, the poet illuminates how
their marriage encompasses “many others”—neighbors, friends, kin, and
Another year has returned us
to the day of our marriage
thirty one years ago. Many times
we have known, and again forgot
in our cruel separateness,
that making touch that feelingly
persuades us what we are:
one another’s and many others….
How strange to think of children
yet to come, into whose making we
will be made, who will not know us
even so little as we know
ourselves, who have already gone
so far beyond our own recall.
Marriage and its fruit, children, bind us to neighborhood,
space, and time, giving substance to our loyalties toward “a place on
earth.” Berry writes:
“Come into the dance of the community, joined
in a circle, hand in hand, the dance of the eternal love of women and men for
and of neighbors and friends for one another.”
Circle: THE COMMUNITY OF FAITH
In Western Europe before the
Reformation, governments were not usually engaged in the registration and
regulation of marriage. This was left
to the One, Holy, and Catholic Christian Church, centered in Rome. Church marriage courts handled disputes and
considered cases for potential annulment.
With marriage deemed a sacrament, grounded in Divine mystery, divorce
was an impossibility. In nations, and then
a civilization, with only one recognized church, this structure worked
The Protestant movement of
the 16th Century shook the system to its core. On the one hand, the Reformers argued that
there was no Biblical warrant for considering marriage a Christian sacrament
and—where they held sway—abolished church marriage courts. They also reasoned that the Gospel text
allowed for divorce in cases of adultery, with remarriage possible for the
offended spouse. On the other hand,
they said that marriage was a spiritual bond superior to all other
natural arrangements, including the celibacy practiced by the Catholic
priesthood and in holy orders. In
Martin Luther’s words, marriage was the highest of estates, “the real religious
order on earth,” divinely ordained, “pleasing to God and precious in his sight,”
designed to fulfill God’s ordinance, “Be fruitful and multiply.” The Reformers called on rulers to govern
marriage through Biblical principles and to punish those who offended Christian
morality. And for three or four centuries, one could
conclude that their system also worked reasonably well.
Still, as one Catholic
writer, R.V. Young, has summarized, Protestantism enhanced marriage in social
status and “as a means of personal companionship and individual, earthly
happiness, but in desacramentalizing it, lowered its resistance to the
pressures of the secular world.”
Indeed, strains and
disorders were evident by the middle decades of the 19th
Century. In Britain and America, for
example, divorce had remained rare until then.
A special act of Parliament, or by a state legislature in America, had
been required for divorce, underscoring the grave and rare natures
of the act. Yet a great loosening of
divorce laws began around 1850, as the process was transferred to civil
In the 20th
Century, this disorder fed into the “no-fault” divorce revolution of the 1960’s
and ‘70’s. Despite changes during the
prior century, until then the notion of “fault-based” divorce had still
underscored the public nature of marriage.
Adultery, desertion, or cruelty had to be proved. This institution was still something larger
that the will and emotions of the spouses; the public interest dictated that
“fault” be determined, before society would relinquish its claims on the
couple’s vow. Indeed, divorce still had
something of the quality of a crime against the social order. But as the American states embraced “no
fault,” they unwittingly destroyed the last remnants of the Protestant scheme:
that is, the expectation that rulers and judges would govern marriage by
Christian principles, broadly defined.
All the same, the issue has
not yet died. The “covenant marriage”
movement of the last half-decade has sought, with some success, to restore to
law elements of both the public interest in marital stability and Christian
covenantal thinking. More directly,
some individuals have begun to challenge the “no fault” divorce regime as a
violation of religious liberty; or, put another way, as a violation of the
implicit agreement reached between church and state back in the 16th
Century. Specifically, in September,
2000, I testified as an expert witness in Harris County, Texas, Family Court in
the case of Waite v. Waite. Here, the wife, Margaret Waite, had filed unilaterally for
divorce, claiming under the 1970 Texas “no fault” statute that she had
“irreconcilable differences” with her husband which destroyed “the legitimate
ends of the marital relationship.”
However, husband Daniel Waite objected to the divorce, arguing that the
1970 law had abrogated the Christian principle of covenant marriage and had so
violated his religious liberty.
Eighty-seven percent of persons marry in churches, he argued. In assuming authority to govern marriages,
the state of Texas also took on the duty to protect the covenantal religious
nature of the bond. “No fault” divorce
violated that obligation.
Despite my own best efforts
on the witness stand, the family court judge denied Mr. Waite’s claims. He took the case to an Appeals Court, where he
again lost. This time, though, the vote
on the three judge panel was 2 to 1.
That is, one Appeals Justice—Kem Thompson Frost—agreed with Mr. Waite’s contention
that the state had an obligation to protect the religious covenant in marriage,
and that “no fault” divorce violated the religious liberty provision of the
Texas Constitution. This was, in a way,
a legal breakthrough. More will be
heard from this argument in the future, I predict.
Some now argue,
as well, that marriage should be completely privatized: that government should
get out of the matrimony business, and return the process to religion.
Well, this could work if the United States had one church—as in Medieval
Europe—and granted that church the police powers needed to enforce its rulings
in the inevitable disputes. Or “privatization” could work if the
government agreed to enforce the disparate marital rules of each religious faith
on its members: ‘Indissoluble marriage’ among Roman Catholics; up to ‘Four
Wives’ among Muslims; temple marriages for all eternity among the Mormons;
divorce only for the victims of adultery among the Lutherans (after which,
Martin Luther actually recommended executing the former spouse who had committed
the adultery); and creative divorce among the Unitarians. Or
“privatization” could work if marriage was stripped of all legal, economic, and
social status, existing merely as a symbolic act of friendship. But the
first two possibilities are, quite frankly, impossible in the current American
context. And the third possibility would undo the very essence of
marriage, making the whole exercise moot. This “privatization” idea, I
believe, can be safely cast aside.
Circle: THE NATION AS COMMUNITY
The nation also has a claim on the marital
pair. Simply put, the future of every
people comes through the cradles found in married-couple homes. The case of the European peoples is
instructive here, where a dramatic decline in fertility since 1970 has been accompanied
by—even led by—a fall in the marriage rate.
Consider, for example, these representative nations:
Total First Marriage Rate*
Total Fertility Rate**
*The total first marriage rate, on the left,
estimates the proportion of women who would have ever married by age 50 if
age-specific first marriage rates in a given year applied throughout life. A
figure of 1.0 suggests that all members of a generation would marry. Since
this rate is sensitive to changes in the timing of marriage, it may exceed
1.0 in certain years.
**The Total Fertility Rate calculates the
average number of children born per woman over the course of a generation if
age specific fertility rates in a given year applied over their whole
reproductive lives. A figure of 2.1 just insures the replacement of a
These numbers show that, as
traditional marriage fades, there will be a paucity of children and a diminished
nation. The retreat from true marriage
and the retreat from children go together.
Also, if the children that are born appear outside of traditional
marriage, their prospects for productive lives sharply diminish, just as the
odds that they will become public charges—as welfare recipients or as prisoners—grow. These facts of household life are now indisputable,
and give support to a preferential option for traditional marriage by the
nation-state, be it evidenced through marriage-sensitive tax provisions, welfare
policy, or simple marriage law.
This was, of course, once
understood in this land. As the U.S.
Supreme Court put the matter back in 1888, in its famed Maynard decision,
…something more than a mere contract. It is an institution, in the maintenance of
which in its purity the public is deeply interested, for it is the foundation
Eighty-four years later,
though, the Court grew strangely blind to this deep national interest, arguing
instead in Eisenstadt v. Baird that:
…the marital couple is not an independent entity
with a heart and mind of its own, but an association of two individuals each
with a separate intellectual and emotional make up.
This view proved consistent, too, with the logic of
no-fault divorce, which also denied the public’s interest in wedlock.
Indeed, it is through an analysis of divorce that we
can better understand the public nature of marriage. After all, divorce is merely the backside of marriage. Legally, the marital covenant is only as
strong as the provisions which govern an exit from its terms.
It seems useful to note here
that “no fault” divorce is actually no new idea, nor some inevitable result of social
evolution or modernity. Rather, it
seems to be a standing temptation for any society or era. For men, at least, “no fault” was the rule
in Old Testament times. Much later, a forceful
advocate for “no fault” was none other than the great 17th Century
English, Christian poet, John Milton.
Predictably, his views were shaped by his own troubled marriage. In 1642, when he was 34 years of age, Milton
traveled to Oxfordshire to confer on a debt owed to his father by one Richard
Powell. A month later, Milton returned
to his London home with a bride, 17 year-old Mary Powell, daughter of the
debtor. The marriage quickly developed
problems: a husband twice the age of his wife; a young bride who missed her
boisterous childhood home; and political differences. Civil War was about to descend on England: the Powells were
staunchly Royalist, while the Miltons stood for Parliament. After Mary went back for a visit with her
parents, she refused to return to her husband.
Milton grew enraged. He authored four pamphlets on divorce, arguing for quick
dissolution of a marriage on the grounds of incompatibility and for a right to
remarry. Sounding like a modern
advocate for “Freedom to Marry,” Milton took a minimalist view of marriage’s
purpose: “in God’s intention a meet and
happy conversation is the chiefest and noblest end of marriage.” Wedlock existed to make people happy by
dispelling loneliness through companionship.
If unhappiness resulted, the union should be dissolved: “Love in
marriage cannot live or subsist, unless it be mutual; and where love cannot be,
there can be left of wedlock nothing, but the empty husk of an outside
matrimony.” Indeed, he said, there was
a moral duty to terminate an empty marriage.
And the state must not interfere, for “to interpose a jurisdictive power
upon the inward and irremediable disposition of man, to command love and
sympathy, to forbid dislike against the guiltless instinct of nature, is not
within the province of any law to reach.”
As a postscript, I note that Mary did finally return
to her husband in 1645 and they found a certain happiness. Moreover, John Milton would rescue his
in-laws from impoverishment after the Royalist cause in Oxfordshire was crushed
by the armies of Parliament. So true
marriage works, to bind up the wounds and heal the divisions even of
nations torn by civil war.
It is also possible to calculate, using hard
numbers, the nation’s profound interest in marriage if we use the negative
calculus of divorce.
To begin with, we know that one measurable cost of
“no fault” divorce has been more divorce. Advocates
of this change during the 1960’s and 1970’s always claimed that their goal was
simply to remove acrimony from the divorce process, for the good of all
concerned. Divorce rates were already
climbing and, in the words of one prominent sociologist, “the adoption of no-fault
divorce was a late and largely redundant step in the lowering of moral, social,
and legal barriers to divorce.”
However, more careful research analyzing divorce trends in 34 states for
the 10 years before and after the introduction of “no fault,” found that this
legal innovation “contributed directly to more divorce or sooner divorces than
would have happened otherwise.” The
researchers even calculate that “57,000 extra divorces” occur each year in the
U.S. due directly to the no-fault revolution.
Second, we can also count the effects of divorce on
children, Bonald’s “third party” in the marriage that the states no longer really
The children of divorce have
significantly more health problems than children in intact homes.
The children of divorce have
much higher incidences of depression, fear of abandonment, and delinquency.
The children of divorce are
more likely to drop out of high school and less likely to graduate from college
than are children in intact homes, even when compared to families losing a
father through death.
And the children of divorce
are more likely to engage in pre-marital sex at a young age, to become parents
before marriage, and to need psychological help.
Of course, the costs imposed
by divorce on young lives can never adequately be added up. Who can put a value on the diminished hopes
of even one child’s life?
But it turns out that we can
put a dollar figure on the costs of divorce that accrue to the public at large. David Schramm, a family economist at Utah State University, shows
in a 2003 study that divorce imposes a heavy financial burden on all
taxpayers. Direct costs to the state
include increased Medicaid expenses, child support enforcement, funds for Temporary
Assistance to Needy Families (TANF), food stamps, and public housing
assistance. Indirect costs include
increased incarceration in prisons, more elderly persons without spousal
support, and greater illegal drug use.
Using careful (and probably low) assumptions, Schramm calculates that “the
‘average’ divorce costs state and federal governments $30,000.” In a given year, the total is $33.3 billion
for the nation as a whole, or $312 for each American household. In crude, materialistic terms, this public
cost of divorce underscores the profound social interest in marriage.
In sum, marriage is a social
and communal, rather than a private, event.
Alongside the marital couple, it engages at least five levels of
community: the unborn or potential children; extended family or kin; the neighborhood;
the religious communion; and the nation.
This civil institution exists for the propagation of children and for
their “conservation” through nurture, education, and protection. Only the union of man and woman can properly
fulfill both of these tasks. Public
policy toward marriage must assume and build on this ideal structure, rather
than on some lowest common denominator of the passions. All five levels of community have a deep and
compelling interest in the formation and preservation of true marriages. And the wise government lifts up obstacles
and checks on divorce, for its real costs will fall on vulnerable children and
the community at large.
So-called “same sex”
marriages trivialize the true institution, for these unions are unable to meet
the two ends of marriage: the propagation and conservation of
children. Concerning propagation, these
pairings are sterile by definition.
When they do claim children, it is usually through either the trauma of
divorce or the unnatural and sometimes dangerous manipulation of the
laboratory. Moreover, these pairings
cannot effect proper conservation of children, for again by definition
they exclude either man or woman, so denying the complementarity of the sexes
on which the good nurturing home rests.
And so, on that day when, perhaps,
an Episcopalian priest in, perhaps, a Massachusetts’ church intones “If anyone
present knows a reason why this man and man [or woman and woman]
should not be joined together, speak now or forever hold your peace”….The proper
response is: “I do.”